On Monday, May 15, 2006, seven months into the trial of Saddam Hussein and his co-defendants before the criminal chamber of the Supreme Iraqi Criminal Tribunal, the presiding judge of the panel of five judges issued what has been labeled by media observers as formal charges or indictments (external link). Mainstream media outlets have indicated that the Iraqi legal system, unlike the system in the United States, provides for formal charges against the accused to be filed after the prosecution presents its evidence, not at the outset of the trial.

Such perceptions raise interesting questions that need to be discussed. First, does the Iraqi law allow for a trial to begin without an indictment informing the defendant of the crimes with which he is charged? Second, what role does the trial court play with respect to such an indictment under Iraqi law?

The answer to the first question is in the negative. Iraqi law, like other criminal legal systems, requires that the accused be informed of the charges brought against him by the investigative judge who decides whether the accused should be tried. As to the second question, the trial court decides at the conclusion of the prosecution's case whether the evidence supports an indictment necessitating the resumption of trial.

1. Iraqi Law Requires an Indictment Prior to the Beginning of Trial

In accordance with international law, the right of the accused to be informed promptly of any charges against him is guaranteed. Article 9, paragraph 2 of the International Covenant on Civil and Political Rights, ratified by Iraq on January 25, 1971, stipulates that:

anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. [1]

This right is also guaranteed under Iraqi law. Article 19, paragraph 4.1 of Law Number 10 of 2005, which established the tribunal before which Saddam Hussein and his co-defendant are being tried, provides that whenever a defendant is charged pursuant to that law he shall be entitled to a fair trial with certain minimum guarantees, including:

to be informed promptly and in detail of the content, nature, and the reasons for the charges directed against him.[2]

This means, at least, that the defendant should be formally apprised of the charges at the beginning of the trial. In fact the trial cannot start and the court cannot assert jurisdiction over the case before a formal indictment is issued against the accused by an investigative judge. Under Iraqi law, it is the investigative judge, not the prosecutor, who conducts pre-trial investigation, gathers the evidence including reception of testimony of witnesses, and decides whether the accused should be referred to trial.

Article 18 of Law Number 10 describes the process of referring the case to trial before the criminal chamber of the special tribunal. [3] If the investigative judge determines that there is enough evidence to support a finding that the accused has committed a crime within the jurisdiction of the special tribunal, he issues an indictment called "Qarar ihalat" (referral decision) in which he summarizes the facts and the crime attributed to the accused, and the specific section of the law under which the accused shall be held responsible.

Pursuant to paragraph 1 of article 20 of Law Number 10, the accused against whom an indictment has been issued immediately shall be informed of the charges and be transferred to the custody of the court. [4] Paragraph 3 of the same article requires the court not only to read the referral decision to the defendant but also to satisfy itself that the defendant understands fully the charge or charges directed against him, and, then to ask him to enter a guilty or non-guilty plea. [5]

It is not clear whether the trial court in the present case against Saddam Hussein has released the original indictment issued by the investigative judge.

2. Role of the Court Relating to Indictment

Iraqi law, unlike criminal procedural rules in other civil law countries, has adopted a special feature under which the presiding judge of the criminal court with jurisdiction over felonies and certain other crimes has to certify the indictment half way through trial.

The trial starts by asking the defendant for his name, his father and grandfather's names, his age, his title, his occupation and his place of residence. Then it will proceed by reading the referral or indictment decision of the investigative judge, receiving the testimony of the complainant, if any, as well as the testimony of each of the prosecution witnesses separately, and next reading the investigative reports and any other relevant documents. Then, according to Article 167 of the Criminal Procedures Code, the court receives the statement of the defendant and the requests of the complainant and the prosecutor. [6]

At this stage of the trial the court has, in accordance with article 181 of the Criminal Procedures Code, [7] either to:

dismiss the case if the evidence is insufficient to support a conviction; or

adopt the indictment if the evidence as presented may support a conviction of the defendant for a crime that is within the jurisdiction of the court. If the facts as presented constitute a crime different from the one prescribed in the original indictment, the court may modify the indictment within certain limitations.

In the second situation, the court shall read to the defendant the indictment as adopted by the court, explain it to him and ask him if he admits committing the crime or not. The trial shall then resume and proceed to its final conclusion.

3. Concluding Remarks

As we indicated, it is not clear whether the trial court has ever released the original indictment of Saddam Hussein and his co-defendants in the present al-Dujail prosecution (it would be of interest to those who are following the trial to have access to the original indictment issued by the investigative judge and to compare it with the May 15, 2006, decision of the trial court). Nor is it clear at this point whether the court adopted the indictment as presented or has made any substantive modifications to it.

2. The Supreme Iraqi Criminal Tribunal Law Number 10 of 2005 (PDF, 2.21MB), art. 19, para. 4.1, published in the Iraqi official gazette (Alwaqai Aliraqiya), issue number 4006, October 18, 2005. [Back to Text]